The Definition Of Rape: How About Justice-Centered?
There's a pretty disturbing piece in The New York Times for anyone who cares about justice, "Who Gets to Define Campus Rape?" Miriam Gleckman-Krut and Nicole Bedera, two sociology Ph.D. candidates at the University of Michigan, write:

Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?

That is the core question raised by Education Secretary Betsy DeVos's decision this month to replace Obama-era guidelines on how universities handle sexual misconduct complaints. In a strongly worded speech, Ms. DeVos made clear that she believed the previous administration had used "intimidation and coercion" to force colleges to adopt disciplinary procedures that deprived accused students of their rights.

To come to these conclusions, Ms. DeVos and her staff appear to have given special consideration to the concerns of men accused of sexual assault.

No, they're going back to the standard that's supposed to be afforded to all in this country: Due process and innocent until proven guilty in a court of law -- as opposed to a campus kangaroo court run by, oh, and administrator or two and a couple of girls who have a big poli sci final.

A 2011 "Dear Colleague" letter from the Obama administration advised universities to change the standard for how to determine guilt from proof that was "beyond a reasonable doubt" to a "preponderance of evidence" -- or, more colloquially, more likely than not.

An argument they make:

Sexual assault complaints are essentially civil rights disputes, and a preponderance of evidence standard is what is legally appropriate in civil rights cases.

That kind of case is the sort where one person's civil rights trump another's. That's not justice -- but they clearly aren't looking for justice for all, but just justice for some: typically, the woman.

They continue:

The preponderance of evidence standard is also survivor-centered. When judging whether someone has been raped, it's almost impossible to assert that a sex act constituted violence "beyond a reasonable doubt."

Our justice system in this country involves erring on the side of freeing a possibly guilty person in hopes of seeing that innocent people are not imprisoned.

The fact that it is sometimes hard to judge a "he said"/"she said" case does not change that.

Related: A student who wanted to be a police officer has been jailed for 16 months after she lied that she had been raped by a taxi driver.

Shouldn't she have gotten the amount of time he would have served, had he been convicted on her word?

Also, how about ordering her to pay restitution to the man she accused? Wendy McElroy has written on this: "Criminals Owe Debt to Victims, Not Society."

I would like to challenge a basic concept in the law. Namely, that criminals owe a debt to society. I believe an individual who commits a crime owes a debt -- that is, restitution -- to the individual who has been harmed.

...What would a criminal system organized around restitution look like? No one knows. The current system has evolved, for better or worse, over centuries and circumstances. Any other system would do the same. But it is possible to sketch a working hypothesis that gets the discussion rolling.

A criminal court that focused on restitution would force those convicted to repay their victims not only for direct financial losses but also in compensation for emotional trauma. Criminals would bear the cost of court proceedings and of collecting any restitution that is not rendered voluntarily. If criminals did not have the means to pay a judgment or could not be trusted to do so over time, they could be monitored or confined to an institution for the sole purpose of working to earn that compensation and to pay the cost of confinement. The taxpayer would be taken out of the loop.

...And a justice built on restitution has at least three advantages over others: the victim is the beneficiary; the prison population is reduced; and, taxpayers do not literally pay for crimes they have not committed.

Comments

"A criminal court that focused on restitution would force those convicted to repay their victims not only for direct financial losses but also in compensation for emotional trauma. Criminals would bear the cost of court proceedings and of collecting any restitution that is not rendered voluntarily. If criminals did not have the means to pay a judgment or could not be trusted to do so over time, they could be monitored or confined to an institution for the sole purpose of working to earn that compensation and to pay the cost of confinement. The taxpayer would be taken out of the loop."

I find this beyond silly.

Furthermore the calculation as to whether to leave any living victims or witnesses and actually subject yourself to any kind of court jurisdiction just tilted heavily in favor of not leaving any witnesses, and unassing the AO.

Who is going to pay the guards and the staff at these institutions? You think any low skill burger flipper is ever going to earn enough to even partially pay off a judgment?

If you want vigilante justice, this would be the surest scheme I know of to accomplish it.

The entire criminal justice system of the US didn't just get pulled out of someone's ass one morning over coffee and donuts,

It evolved slowly from English common law.

It exists in its current form because of an imperfect evolutionaly process where hair brained libertarian schemes like this one were tried and failed.

This sort of scheme only works (crudely) when individuals have deep ties to their communities and really no place else to go.

For futher reading, look up the history and legal meaning of the term *outlaw*.

Isab
at September 20, 2017 10:55 PM

Strongly inclined to follow Isab's lead here without thinking about it too much.

Justice is delivered to criminals by society for society's purposes... It's not a gift to the aggrieved. It would be really bad if civilization start passing out this candy to the kids it regarded as especially cute or needy.

No... Law applies to all.

(Tressider and I used to fight about this all the time: Anyone remember that rape case in Atlanta, or the kid assaulted by Polanski?)

My 13 yr old son was referred to a Restorative Justice program for sexting. It was like the Spanish Inquisition. Although both parents were present, we rarely intervened because they had the power to send him to court where he might end up on Sex Offender Registry.

They treated an immature child like a criminal.

Restorative justice has great potential for abuse.

Anonynmous
at September 21, 2017 3:56 AM

What Isab said. The thing is: your average robber/mugger/scumbag criminal is not capable of paying restitution. They have little education, no job skills, no assets - and on top of that, they don't give a shit. So what are you going to do?

This is the kind of proposal that comes from some ivory tower idiot who has never met an actual criminal.

a_random_guy
at September 21, 2017 4:11 AM

> the kind of proposal that comes
> from some ivory tower idiot who
> has never met an actual criminal.

... And who perhaps hasn't thought that much about victims, or about the possible pool of victims... i.e., everybody.

As with healthcare and education and regulation and every other provision, voters seem to want exquisitely tailored justice from government, no matter what it costs...

Others. No matter what it costs others.

Crid
at September 21, 2017 4:36 AM

Also, sympathies to Anonymous & his/her child.

Crid
at September 21, 2017 4:37 AM

Making the perpetrator pay restitution to the victim was not included in the American jurisprudence system for a reason.

Remember the Draft Riots of 1863? Rich men could pay $300 to avoid being drafted into the Union army. Poor men, on the other hand, had no choice but to go to the meat grinder.

Society making the criminal pay is preferred because the rich perpetrator can simply throw some money at the victim while the poor perpetrator cannot and must do prison time. While rich defendants being able to afford a good lawyer means the vestiges of this inequity are still evident in the criminal justice system, nonetheless the system is designed to be as impartial as possible, dealing out the same fate to rich and poor alike for the same crime. Hence the symbolic blindfold on Lady Justice.

Who Gets to Define Campus Rape?

As opposed to Off-Campus Rape? Is it somehow different on campus? Are off-campus women less valuable? Are they to be afforded less protection? What if they're raped on campus?

What about off-campus men? What if they come onto campus and commit rape? Why are they to be afforded the protection of a higher criminal evidence standard when campus men are not?

The idea that the university campus constitutes some hallowed ground separate from the commonality of the city, a special place to be overseen by anointed guardians with sacred robes and rituals is nonsense.

Universities have a right, nay a duty, to lay out beforehand the behavior expected of students and enforcing that behavior for the protection of all students.

Calling any kind of on-campus sexual misconduct "rape" however is broaching the territory of law and implying criminal misconduct in cases where it cannot be proven to the standard set by the law for criminal cases.

In addition, providing lopsided protection for one set of students at the expense of another is harkening back to segregation and a desire to have the "right kind" of people on campus only.

A 2011 "Dear Colleague" letter from the Obama administration advised universities to change the standard for how to determine guilt from proof that was "beyond a reasonable doubt" to a "preponderance of evidence" -- or, more colloquially, more likely than not.

As I understand it (not a legal expert, just a frequent juror), there are three standards of proof.

"Beyond a Reasonable Doubt" is the standard the US legal system applies when the state brings criminal charges against someone. This is the highest standard and its application in these cases is meant to rein in the state and prevent the wrongful conviction of the innocent.

"Clear and Convincing Evidence" is a standard that requires the accusing party to prove that it is substantially more likely than not that the charge is true. This standard is "used in several types of civil claims, including administrative hearings, habeas corpus, and some fraud claims." (Rottenstein Law Group, LLC)

"Preponderance of the Evidence" is the standard usually applied in civil trials. This standard requires that more evidence shows guilt than innocence - i.e., 51% of the evidence is of guilt. It is the lowest standard recognized in our legal system.

Given that there are three standards, one wonders why the "Dear Colleague" letter changed the burden of proof from the highest to the lowest instead of to the less-strenuous but still strenuous middle burden. One also wonders what legal experts, if any, were consulted in drafting that letter.

Conan the Grammarian
at September 21, 2017 5:51 AM

This is the kind of proposal that comes from some ivory tower idiot who has never met an actual criminal.

For the record, Wendy McElroy never went to college. I talk about her in my TED talk. She was homeless as a teenager (at 15, I think), and sleeping in a church, escaping a terribly violent home situation.

Also, the LA Court made my car thief pay me restitution for the damage to my Rambler. He paid most of it, but largely because I kept going after him to get it (tracking him down and yelling at him to pay). Once a thief, always a thief -- the dumbshit used the UPS accounts of the business he was working at to send me the money orders. Some nice UPS lady in Florida once helped me track down the business when I told her the story and there was only a UPC code on one of the packages.

However, there could be measures put in place -- wage garnishment, etc. -- to make this happen. There could be ankle monitoring or whatever.

I have a lot of respect for McElroy; generally she's a voice of clarity. And I see what she's getting at here, and it ties into our discussion about rehabilitation: is there some way that we could reduce the costs of incarceration, and transform at least some of those incarcerated into useful, or at least non-harmful, citizens? Unfortunately, I think the practical answer is no, in most cases.

Hardened criminals only know one law, and that's the law of the jungle. Bite or be bit, and the one who bites hardest and most often is the one who gets respect. In the estimation, the justice system is mostly toothless. You can order them to pay restitution all you want, but if they don't feel like it, they won't do it. They know that the worst you can do is send them to prison, and prison is no biggie to them. They get three squares and a roof over their heads, and an environment of people like them in which they can play the kind of games that they like. This, I think, is why death penalties exist: it's an attempt to demonstrate that the justice system is a tiger that can bite hard when it wants to. (Whether or not this actually has any deterrence effect is a topic for another thread.)

Rehabilitation only has a chance of working when you catch them early, at a point where they are only committing petty crimes and attitudes have not hardened yet. At that point, some kind of restitution makes sense. But even there, to be effective, the nature of it has to be more like a fine, rather than something that is determined like a judgement in a civil suit. It has to be something that's painful, but from which they can see light at the end of the tunnel. If you order a small-time criminal with little ability to make money to pay a multi-million dollar judgement, they're just going to conclude that the system is unfair, and they won't bother trying.

Cousin Dave
at September 21, 2017 7:00 AM

What is my kids life worth? There are a bunch of teens (or they were at the time of the crime) on trial right now in TN for kidnapping, raping, and killing a girl. How exactly would they provide restitution for that??? They will never earn any money, and how would you decide what her life was worth, and to who? Its absurd.

Momof4
at September 21, 2017 7:04 AM

But getting back to the topic: Third Wave feminism pretty much defines all heterosexual sex as rape. (The tautology they use: "Heterosexual sex is so distasteful that no woman in her right mind would ever consent to it. Therefore, a woman who does consent is, by definition, not in her right mind and therefore not capable of giving consent. QED.") So yeah, both the rigged systems and the defining-down of the word "rape" are part of the plan. And it's working; the percentage of men on campus is dropping.

As in the case of Antifa protests, most college administrators are "down for the cause", and therefore will only put up token objections for appearances' sake. And they'd rather keep paying off quietly-reached legal settlements than challenge the system. After all, it's not like the judgements are coming out of their own pockets.

Cousin Dave
at September 21, 2017 7:08 AM

Amy,

As you demonstrate we already have a part of the justice system that provides restitution from the criminal to the victim.

As I understand things we have two main parts to the system. There is the criminal side where we look at the cost to society at large. Hence the prices paid here go back to society at large be that money or time. We also have the civil side. Here the price the criminal inflicted on the victim is dealt with and payment goes back to the victim and not the courts. We already have what McElroy is advocating for. So the understandable read on her argument is to do away with the rest of it. I.e. get rid of the criminal justice system and only have the civil one. As people are pointing out this isn't workable. How do you repay a murder? The victim is dead and a life cannot be given. How do you repay a rape? You just can't unrape someone. If you steal $100 the money can be returned but for many crimes there is no way to reverse things. For most of the people we put in jail restitution is not possible.

As for rehabilitation, I'm all for it. But we already do this as well. How many times someone can screw up and still get another chance is a political question with no real answer. We just pick a number and move forwards. But for the most part by the time someone ends up in jail in the US it is already too late. I remember when Obama declared he was going to release all the nonviolent drug offenders rotting in our jail cells . . . and then found there weren't any.

Ben
at September 21, 2017 8:21 AM

A student who wanted to be a police officer has been jailed for 16 months after she lied that she had been raped by a taxi driver.

Shouldn't she have gotten the amount of time he would have served, had he been convicted on her word?
_________________________________________

I'm not the only one to point out that there are serious problems with that - for one thing, no one ever seems to suggest it for false accusations in OTHER cases. Who ever heard of sentencing someone to 20 years - or even 10 - for a false accusation of ANY kind? There are reasons for that, even if I don't have the legal background to explain it.

"...But have you stopped to consider what that might entail? If you falsely accuse someone of misdemeanor battery, you'll be sentenced to a year of probation, anger management and community service.

"If you falsely accuse someone of murder, you'll get the electric chair.

"These are the two extremes and I'm not comfortable with either of them. The former is too lenient and the latter is too harsh."

lenona
at September 21, 2017 11:05 AM

These people are incoherent. They say "Sexual assault complaints are essentially civil rights disputes, and a preponderance of evidence standard is what is legally appropriate in civil rights cases." Sexual assault is a violence crime, not a civil rights crime. Sex discrimination might be a civil rights claim but not rape.
Then they say "The preponderance of evidence standard is also survivor-centered. When judging whether someone has been raped, it's almost impossible to assert that a sex act constituted violence "beyond a reasonable doubt."" The issue in a rape trial is NOT whether a sex act constituted violence but whether a rape happened beyond a reasonable doubt. The gobbledygood speak they use is because they want to include "the girl felt dirty afterwards or he didn't send flowers" even though she was quite willing at the time, or they want to include getting whistled at as assault. That is, they wanted not only the lower standard of proof, they wanted to prevent men from defending themselves against false accusation, and they wanted to elevate hurt feelings to the status of rape.

cc
at September 21, 2017 11:55 AM

There are many reasons why people make false accusations, including undue influence by social workers and law enforcement personel or simply mistaken identity. Punishing them harshly will lead to real victims circumventing the court system and vigilante justice because they will be more afraid of the police and the court system than the criminals.
It will also lead to guilty people never recanting their lies because the penalties for doing so are too hatsh.

I am all in favor of enhanced penalties for perjury. But perjury is a specific crime where the false testimony occurs in a court of law under oath and prosecution and conviction for it requires evidence *beyond a reasonable doubt*

Fortunately for most of us, lying to the police is not yet a felony and the 5th amendment is a real bar to to successful prosecutions.

Isab
at September 21, 2017 12:15 PM

Dear lovely blog hostess. Don't you know that the slogan is that it is better to harm 99 innocents than to allow 1 guilty party to escape justice?

On the other hand, if colleges are such festering shit holes of rape culture, why should parents of young women pay for the privilege of letting their daughter get molested?

On the third hand, what good does it do to allow an actual rapist to go free, so he can prey upon others? should he be locked up for a good long while?

Leonna brings up Patrick's objection If you falsely accuse someone of murder, you'll get the electric chair.

What if the state actually executes the accused based upon a person's false testimony? then that person should be guilty of premeditated murder. Worse, one would be using the power of the state to be their assassin.

Conan asks the unaskable: As opposed to Off-Campus Rape? Is it somehow different on campus? Are off-campus women less valuable?

In a word: yes. Women off campus, especially poor women off campus are much more likely to be sexually assaulted. Actually doing something about that will require actual work and effort.

Much like Black Lives Matter, they are just virtue signalling each other how they're morally superior to, well, les déplorables. Easy, simple, makes them feel good.

I R A Darth Aggie
at September 21, 2017 1:43 PM

it is better to harm 99 innocents than to allow 1 guilty party to escape justice?

What innocents? All men are rapists and that's all they are.

dee nile
at September 21, 2017 1:51 PM

To be fair Dee the gays are affection withholding jerks.

Ben
at September 21, 2017 2:13 PM

I've seen the idea that a young woman should go where she wishes without dire consequences many times. Such people claim others are "victim-blaming", etc., if a word of caution is offered.

"Not only are there places *I* cannot go whenever I please, no matter how I dress, if I tell you to look both ways before crossing the street, I'm just trying to help your dumb ass avoid being hit by a bus. If anything, you should be ashamed it didn't honestly occur to you that you can be hurt, and someone else had to point out the blindingly obvious...

Have you not noticed that gunfire sometimes occurs around nightclubs?

Can you actually claim that it is someone else's responsibility to see that you aren't there when that kind of violence occurs? What role do you actually have in supporting a venue that attracts such a thing?"

Radwaste
at September 21, 2017 3:58 PM

Don't forget also making the false accuser register for life as a sex offender. In many states this ensures permanent homelessness.

jdgalt
at September 21, 2017 7:22 PM

lenona, go to the cops and claim that three weeks ago person A stole your wallet.

Say nothing else, see how quickly the cops arrest the guy for theft and the DA charges

A rape which occurs on campus can be reported to police and the alleged rapist tried by the criminal justice system, if the accuser so wishes. "Campus rape", in this context, refers to rape accusations which are instead judged by college officials. A lower standard of proof is appropriate in such cases, because criminal penalties can't be applied. The accused can only be deprived of the privilege of attending that institution.

The problem isn't the use of the lowest standard of proof; it's that men are routinely found guilty when even that standard has clearly not been met.

Rex Little
at September 22, 2017 12:18 AM

Rex. A major quibble. The penalty is that the victim is unlikely to get into any other university.
He'll have this on his record forever. Much different than your view.

The problem is that if a parent is dumb enough to send a daughter into the horror of the one-in-five version of campuses so beloved of the activists--which, it must be said, isn't as bad as the Red Army's occupation of Berlin in 1945--they want evidence that the university is on the job.
The university has to prove they are or, according to Dear Colleague and other implications, they risk losing fed boodle.
But the colleges, according to DoJ figures, actually have a rate of about one in 1500, or less.
In the first case, there should be busloads of perps every week, with oceans of irrefutable evidence. So showing good faith by investigating and convicting--in a campus sense--the bad guys is easy.
But if the DoJ figures are correct, it's going to to take a lot more effort.
So, in order to get numbers relative to the one-in-five regime, the universities have to make bricks withut straw.
Which, apparently, they do by using activists whose acquaintance with conscience is apparently only occasional and is highly situational.

Richard Aubrey
at September 22, 2017 6:06 AM

They say "Who should have the right to define rape: survivors who have experienced sexual violence or those who are accused of perpetrating it?" Legal terms are defined by society. Letting the individual "decide" what rape means leads to insane things like a girl who brings the boy back to her room, initiates sex, takes her own clothes off, begs him not to leave, and then a year later decides it was rape. Or a girl with her room-mate asleep in the next bed not calling for help when she claims she was being raped. or calling a pinch on the butt
or cat-calling assault. The law can't be built on feelings but only on definitions of certain actions.

cc
at September 22, 2017 11:12 AM

luj, there are good reasons cops tend to take alleged, violent crimes more seriously than alleged, nonviolent crimes. You knew that, right?

I've gotten robocall warnings whenever there's a mugger in the neighborhood - rarely, thank goodness. Of course one doesn't get robocalls when we're just talking about pickpockets.

Not to mention that you danced around what Patrick said.

Again, people DO make false accusations of all kinds, including many of the most serious of felonies, but I can't even remember a case of a killer trying to frame someone else for the murder and getting his/her own sentence DOUBLED as a result. Let alone anyone with a clean record getting more than two years (if that) for just one charge of lying. There are reasons for that.

lenona
at September 22, 2017 1:32 PM

Let alone anyone with a clean record getting more than two years (if that) for just one charge of lying. There are reasons for that.

I know, but you ignored my point and you know it. If, as Isab pointed out, lying is not a felony under certain circumstances, all you can do is find some other felony charge to use against the liar. Had the victim not been shot, there likely wouldn't have BEEN any prison sentence for her. (Hint: Victims of lying very seldom get murdered.)

What is wrong with anything Isab said, or anything said by those who agreed with Isab?

lenona
at September 24, 2017 12:33 PM

I would like to challenge a basic concept in the law. Namely, that criminals owe a debt to society.

I think this is a side-effect of the way criminal cases are handled in court. Civil cases are between the parties affected, e.g., John Doe vs. Jane Roe.
In criminal cases, one of the parties is always "the people" vs. a defendant, e.g., The people of California vs. O.J. Simpson.

In a civil case, if the defendant loses, she owes a debt to the plaintiff. So in a criminal case, if the defendant loses, he owes a debt to the plaintiff, in this case, "the people", or basically, "society".

That being said, I think restitution is a good idea, and maybe ought to be the law. It's just not always possible in practice.